MM (risk- failed asylum seekers) Democratic Republic of
Congo [2003] UKIAT 00071
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 9 July 2003
Date Determination notified: 15.08.03
Before
Mr P R Lane (Chairman)
Mr M L James
Mr T B Davey
Between
| MM |
APPELLANT |
| and |
|
| Secretary of State for the Home
Department |
RESPONDENT |
For the appellant: Mr K Behbahani of Messrs Scudamores Solicitors
For
the respondent: Ms C Hanrahan, Senior Home Office Presenting
Officer
DETERMINATION AND REASONS
- The appellant, a citizen of the Democratic Republic
of Congo, appeals with leave against the determination of an Adjudicator, Mr K
W Brown, sitting at Taylor House, in which he dismissed on asylum and human
rights grounds the appellant's appeal against the decision of the Secretary of
State on 3 January 2001 to refuse him leave to enter the United Kingdom.
- The appellant's account was that he had serious
difficulties in (what is now) the DRC during the year 1998, as a result of
renting rooms to Rwandans. He also said that his wife had Rwandan connections,
in that her father was Rwandan, although she herself was a national of Zaire.
There were searches of the appellant's house for Rwandans, during one of which
he and his wife ran into the street and became separated. The appellant said
that in February 1999, when attempting to leave the DRC, he was apprehended.
The soldiers holding him saw a photograph of his wife which he had about him
and asked the appellant where his wife was. Subsequently, however, the
appellant was able to escape. From then until October 1999, he lived with a
family in the DRC. He left the DRC in October 1999. He produced what was said
to be a death certificate relating to his wife, giving a date of death of 26
February 1999.
- The Adjudicator heard evidence from the appellant.
He did not find the appellant to be credible. Indeed, at one point, the
Adjudicator considered that "the appellant was making up his story of the
escape and subsequent events as he went along" (determination, paragraph 34).
The Adjudicator concluded that "I do not accept the appellant has given a
credible account". He did not consider that the purported death certificate
was authentic "as providing evidence to support that his wife was killed as a
result of torture at the hands of the DRC authorities" (paragraph 35).
- The Vice President who gave leave to appeal found
that
"The adverse credibility findings are sound. In particular, the
Tribunal considers that the Adjudicator was entitled to find implausible the
claims that on the one hand the Rwandans on the claimant's premises would
not have been discovered on the first occasion when the premises was
searched, on the other hand that he would have allowed them to remain living
there given the threat that they posed. The findings about his escape from
custody and its implausibility are also sound."
- Leave to appeal was given on the following basis:
"However, it is right to make the point as was done in the
grounds of appeal that there are no findings by the Adjudicator on risk on
return as a failed asylum seeker. It would appear from the submissions
before the Adjudicator that there may be contrasting Tribunal determinations
on the point, and it is appropriate therefore for the matter to be
considered and clarified by the Tribunal."
- Mr Behbahani's submissions were, in essence, that,
on the basis of the latest information available to the Tribunal, including in
particular the UNHCR letters to which we shall make reference, there was a
real risk that the appellant, if he returned to the DRC, would face
persecution, the nature of which would also fall within Article 3 of the ECHR,
as being cruel, inhuman or degrading.
- Mr Behbahani very properly conceded that it was
reasonable to infer from the Adjudicator's determination, in particular
paragraphs 33 to 36, that the Adjudicator had not found any aspect of the
appellant's account to be credible. This would include the appellant's claim
to have been married to a woman whose father was of Rwandan ethnicity.
- However, for the purposes of this appeal, the
Tribunal indicated that it would proceed on the following basis:
i) The appellant is a citizen of the Democratic Republic of Congo.
ii) He has been in the United Kingdom for approximately three and
three-quarter years, having arrived on 27 October 1999.
iii) If returned, he would arrive in the DRC as someone who had made an
unsuccessful claim for asylum in the United Kingdom.
iv) The appellant was previously married to a DRC citizen whose father was
Rwandan but who has since died.
- The Tribunal would, however, emphasise that there is
no question of its acceptance that the appellant and his wife suffered any of
the problems described to (and rejected by) the Adjudicator, in particular,
that the wife died at the hands of the DRC authorities.
- In addition, there is the following matter. The
Tribunal was concerned to ascertain the basis upon which the appellant would
be returned to the DRC by the United Kingdom government. Ms Hanrahan was
unable to answer this question immediately, so the Tribunal adjourned briefly
so as to enable her to take instructions.
- At the resumed hearing, Ms Hanrahan was able to
give the Tribunal the following information:
a) The UK Government in the past removed persons to the DRC by mean of EU
travel documentation.
b) That practice has ceased. Ms Hanrahan was unable to say precisely when,
but it appears from a Home Office bulletin of January 2003 that the practice
ceased prior to 30 January 2003.
c) A person in possession of a valid DRC passport can currently be
removed.
d) The UK Government is in negotiation with the DRC Embassy in London with
a view to arranging for those not in possession of such a passport to be
returned to the DRC upon an emergency travel document.
e) Such a document would confirm that the person concerned is a DRC
national but would not contain any other information as to why he or she had
been present in the United Kingdom.
- The recent history of the Democratic Republic of
Congo is well known and the Tribunal does not consider that it would be of
material assistance to set it out in this determination. It is, however,
relevant to mention the following. On 30 July 2002 a peace agreement was
signed in Pretoria, South Africa, by President Kabila of the DRC and President
Kagame of Rwanda. Under this, the DRC government agreed to disarm and arrest
thousands of Hutu rebels and send them to Rwanda, whilst the Rwandan
government was to withdraw 30,000 of its troops based in Eastern DRC. Hutu
rebels did not recognise the agreement. On 6 September 2002 the DRC government
and the government of Uganda signed the Rwanda Accord, which called for the
withdrawal of Ugandan troops from the DRC and the establishment of joint
security patrols along the DRC's border with Uganda. Rebel factions continued
to hold sway in the eastern and northeastern areas of DRC. However, on 2
April, one rebel organisation, the Movement for the Liberation of Congo,
signed a power-sharing agreement with the DRC government. According to a BBC
news report of January 2003, the MLC has installed representatives in
Kinshasa, although Jean-Pierre Bemba, the MLC leader, has not ventured there.
Reports of atrocities in the northeast continue to be received, and there are
suggestions that dissident MLC commanders have formed a splinter movement. In
May 2003, UN troops sought to assist those caught up in the violence in the
northeast, but large numbers of civilians fled across the border to Uganda. In
that part of the DRC, including Kinshasa, which is controlled by the Kabila
government, there are still serious human rights problems, as the latest US
State Department report observes. In particular, citizens do not have the
right to change their government peacefully and the security forces were
(during 2002) responsible for unlawful killings, torture, beatings, rape,
extortion and other abuses. In general security forces committed these abuses
with impunity. Prison conditions in hundreds of smaller regional detention
facilities (both legal and illegal) remained harsh and life threatening;
however, conditions in some of the larger, centralised prisons improved.
Security forces continue arbitrarily to arrest and detain citizens. Prolonged
pre-trial detention remains a problem. The Special Military Tribunal (COL)
tried some civilians for political offences, although most cases were related
to the Kabila assassination or to alleged coup plotting. The judiciary
continue to be under funded, inefficient, and corrupt. All this we take from
page 2 of the State Department report, set out at page 19 of the appellant's
objective evidence bundle. Altogether, some 3 million people are estimated to
have been killed during the course of the civil war, making it the largest
conflict, in terms of loss of life, since World War II.
- Such is the sorry state of the Democratic Republic
of Congo, as it is to be found today. One point should, however, be mentioned
at this stage. It was not argued on behalf of the appellant that, irrespective
of what might happen to a person at Kinshasa airport, upon arrival from
abroad, the situation in the DRC is such that everyone living in the
government-controlled part of the country (other than those comprising or
directly associated with the government) is as such at real risk of Article 3
ill treatment. Furthermore, the Tribunal is not aware of any claims to this
effect in the documentary material on DRC currently available, whether
emanating from a governmental or non-governmental source.
- The situation in the DRC is, however, relevant, in
Mr Behbahani's submission, to the question of whether the appellant, assuming
him to be returned to Kinshasa by air as a failed asylum seeker from the
United Kingdom, would as a result thereof be at real risk of coming to the
adverse interest of the DRC authorities. If we may paraphrase Mr Behbahani's
submissions, they appear to come to this. Against the background of the
situation in the DRC today, it does not take much for a citizen of that
country to find himself or herself the subject of adverse interest from the
authorities. Returning to the DRC from Europe, as a failed asylum seeker, is
therefore enough to arouse such adverse interest. Secondly, once a person is
the subject of adverse interest, he or she is likely to be detained. The
objective evidence shows that persons in detention in the DRC are frequently
subjected to abuse at the hands of the authorities. Even if they are not,
however, the conditions experienced by those in detention are in themselves
such as to violate Article 3 of the ECHR.
- The Tribunal turns to the documentary materials
relating to the DRC which were before it at the hearing. With one exception,
namely, the April 2003 DRC Country Assessment, these documents were ones
submitted on behalf of the appellant.
- At page 62 of the objective evidence bundle, there
is a letter dated 27 June 2002 from the UNHCR to a firm of solicitors in the
United Kingdom. Apparently, those solicitors had requested information on the
current situation in the DRC in relation to the return of unsuccessful asylum
seekers. In that letter, the UNHCR emphasised:
"The need for a case-by-case approach in examining all asylum
applications and in assessing whether or not an asylum seeker may be
returned in safety. Within the particular country context, each case should
be examined on its own merits with due weight being given to the specific
background and profile of the applicant."
The letter then went on to look in more detail at particular categories of
persons who might be at risk on return:
"Against this backdrop, persons originating from rebel-held
territories such as Goma are held in suspicion and liable to adverse
attention – sometimes amounting to persecution – from the authorities in
Kinshasa. By a similar token, persons of Rwandese origin are also at risk of
adverse attention. This is not least because Rwandese and Rwanda-supported
forces are prominent among the armed elements ranged against the Kinshasa
authorities. In this light, persons of Tutsi ethnic origin are known to be
among the targets of extreme human rights abuses amounting to persecution.
Tutsis and those perceived to be Tutsis have been subjected to arbitrary
detention and ill treatment and have in certain instances been tracked down
and killed in Kinshasa. This analysis is equally applicable to ethnically
mixed Tutsis.
According to information available to UNHCR, agents of the
security services frequently interrogate Congolese returning to Kinshasa
from abroad, particularly those who are known to have sought asylum. UNHCR
is aware of instances where interrogation at the airport has been followed
by arbitrary detention and serious ill treatment by DRC security agencies.
If the returnee is not already known to the DRC authorities, there is a
strong likelihood that were he to be returned to Kinshasa, his background
could be revealed in the course of interrogation on arrival."
- It is necessary to observe that this letter
pre-dated the agreement signed on 30 July 2002 between the Rwandan and DRC
governments.
- The day after this letter was written, there began
in Vienna a seminar under the auspices of ACCORD/UNHCR. This seminar was
organised in order to assess the then current situation in the DRC, in
particular, the position regarding human rights of groups considered to be at
risk. The Final Report arising from this seminar is contained at pages 64 to
136 of the bundle.
- At page 119, there is a passage relating to "mixed
marriages". Mr Behbahani sought to rely upon this passage in his submissions.
In deference to him, we shall set it out in full:
"Members of the very specific groups of Hemas, Lendus and
Banyanulenges, may hence become victims of ethnic intolerance either because
of their activities or because they belong to the group of mixed-marriage
people who may be rejected by their neighbours and be forced to seek asylum
in a neighbouring country. People belonging to a family of mixed ethnicity
should be identified as a group at risk. Particularly in the east, those who
are approached in the UNHCR in search of help want to leave because none of
the two communities will trust them.
In general, the offspring belong to the ethnic group of their
fathers. So if the mother is e.g. Hutu, Baluba or Kongo and the father is
Tutsi, the child will be described as Tutsi. Yet, the case is not always
that straightforward. Some people have been even killed because of their
appearance, because they look like a Tutsi, while in fact they were not. One
group that is often persecuted, but unfortunately often forgotten are the
Hutus who themselves are not safe inside the DRC. They are persecuted on
both sides of the frontlines."
- The Tribunal does not consider that this passage
assists the appellant's case. It is not clear whether the reference to people
"belonging to a family of mixed ethnicity" is intended to cover more than
people whose parents were of different, or mixed, ethnicity. However, even if
the passage is to be interpreted as extending to those who, whilst themselves
not of mixed ethnicity, marry a spouse who, or into a family that is, of mixed
ethnicity, it is common ground that this appellant is not now (if he ever was)
married to a person who had Rwandan connections. The appellant himself is not
of mixed ethnicity.
- At pages 124 to 127, there is an extensive passage
under the heading "Security Threat for Deported Asylum Seekers". The opening
paragraph reads as follows:
"In view of the above [namely, the preceding passage concerning
the return of refugees from neighbouring countries such as
Congo-Brazzaville] and describing the very serious situation in the DRC,
caution should be exercised in the involuntary return of unsuccessful asylum
applicants from the DRC, and a case-by-case approach is necessary in dealing
with these individuals. Asylum seekers who have been unsuccessful after
going through fair eligibility procedures and application of correct
eligibility criteria may still face problems upon return to their country of
origin. Issues such as the individual's place of origin, last place of
habitual residence, family relations, ethnic group and profession are to be
considered before the person is deported. An individual approach based on
the circumstances of each case and a careful consideration of the changing
political and security context in the DRC is therefore required. In any
case, deportation to the DRC should be avoided."
- The Tribunal would make three comments on this
passage. First, it appears to be primarily (if not exclusively) focussed upon
those being returned from countries bordering the DRC. Secondly, despite the
last sentence, it falls short of a finding that returning asylum seekers as
such are at real risk of serious ill treatment. Thirdly, it commends a
case-by-case approach, looking at factors of the individual claimant which may
be relevant in predicting the attitude towards him of the DRC authorities.
Such an approach is clearly correct.
- The report then goes on to describe the findings
of a working group on returnees which was created in the United Nations Human
Rights Office in Kinshasa. This showed:
"that a great majority of deportees are escorted by the police
of the deporting country. According to the authorities, when the deportee
returns with a travel document "tenant lieu de passport", he/she is referred
unaccompanied to the immigration office in the center of the capital to
complete immigration formalities. The authorities reiterate that the
deportee, while he or she is completing immigration formalities, is not a
detainee and that as soon as Congolese nationality is confirmed the person
is allowed to leave immigration premises.
A problem arises when the deportee is in fact a non-Congolese
national. DRC immigration authorities have indeed reported to UNHCR and the
local office of the UN High Commissioner for Human Rights (UNHCHR) in
Kinshasa that in several instances deportees holding identity/travel
documents issued by the DRC Diplomatic Missions turn out to be Angolans
after a thorough interview. As an example, the DRC immigration authorities
were "hosting" in their premises for over a year an Angolan national who was
deported as Congolese by the Swiss authorities, but who had departed to
Switzerland from Angola and not from the DRC. It is therefore recommended
that states very carefully ascertain the nationality of unsuccessful asylum
applicants before they are processed for return to the DRC.
While the DRC authorities maintain their position as to the
procedure in place to receive deportees, the UNHCR has received reports on
deportees transferred to the DRC intelligence services such as ANR (Agents
Nationale des Renseragnements), DEMIAP (Detection Militaire des Activites
Anti Patrie) or GSSP (Garde Speciale de Securite Presidentielle) for
interrogation. The DRC authorities deny such procedures.
Against this background, it can no longer be said that only
those deportees who are discovered by the authorities to have sought asylum
abroad undergo interrogation sessions upon arrival at Kinshasa airport. In
fact, reports from local human rights NGO's, victims and eye witnesses show
that certain groups of individuals who are deported (having or not having
sought asylum), who repatriate voluntarily, may face serious problems
following possible interrogation conducted by security services upon arrival
to Kinshasa. Should the authorities in Kinshasa discover that a deportee has
a political or military profile, or has sought asylum abroad owing to a
political or military background, such a person may be at risk of arbitrary
detention and ill treatment. People who are returned without any assurances
that the government does not hold any grudge against them could be in
serious trouble and get detained as prisoners of conscience or could even be
at risk of the death penalty, always depending on their
activities."
- The Tribunal makes the following observation on
the passages just quoted. First, they clearly have to be read in the light of,
and subject to, the opening passage, previously quoted, which, although
advising the exercise of caution in the involuntary return of unsuccessful
asylum applicants, does not state that no such returns may be made, whatever
the circumstances.
- The second point relates to the issue of
nationality. In the present case, there is no doubt at all but that the
appellant is a Congolese national. In particular, there is no evidence at all
to show that the authorities in Kinshasa would have reason to suspect that he
was from Angola. When interviewed at Kinshasa airport, there is no reason to
suppose that the interviewer would have reason to question the travel
documentation issued by the DRC Embassy in London, describing the appellant as
a DRC citizen. Thirdly, there is the question of the appellant being an
unsuccessful asylum seeker. Ms Hanrahan, as previously noted, informed the
Tribunal that there was no question of the travel documentation stating the
reason why the appellant was in the United Kingdom. In any event, the only
logical inference to be drawn from the paragraphs just quoted is that, even if
the authorities at Kinshasa airport discover at the interview that the person
is a failed asylum seeker, that will not necessarily result in the person
concerned being taken into detention and ill treated (whether by torture,
other active ill treatment or as a result of the conditions in which persons
are held). Those who are said by the report to be at risk of facing serious
problems are people having a political or military profile or who sought
asylum abroad owing to a political or military background. The appellant falls
into no such category. Nor, as we have said, is he a person of mixed
ethnicity.
- The final passages of the Report to which
reference needs to be made occur at pages 126 and 127 of the bundle. These
deal with the question of persecution on the grounds of having sought asylum
abroad. The following passage is significant:
"Responding to a question from the audience whether seeking
asylum itself could lead to persecution and hence be a sufficient ground for
granting refugee status, Mr Byaruhanga [Central Africa Researcher, Amnesty
International London] stated that he was not aware that people had been
detained solely for seeking asylum. Usually they are accused of some
offence, like alliance with the enemy, as e.g. in the case of people from
Kivu, having fled to Nairobi and subsequently to Europe and then being
deported to Kinshasa."
- Mr Byaruhanga went on to state that if the
returnee was alleged or known to be a supporter of the opposition "arrest, and
possibly torture and persecution, are likely". There then follows a passage
describing the difficulties which have occurred
"when countries of asylum have deported someone and handed over
all the information about this asylum seeker to the home government.
Informing them that the applicant has e.g. claimed that he was imprisoned
and beaten could cause serious problems for the individual."
The seminar appears to have agreed that this "is something that must in all
cases be avoided" and that
"reporting to the authorities of the country of origin about the
asylum claim obviously could create serious trouble for a person who may not
have problems otherwise."
- The Tribunal observes that there is no evidence
before it to show that the United Kingdom government has had such a practice
in the past, as regards returnees to the DRC, nor that it intends to follow
such a practice once negotiations with the DRC Embassy are completed, on the
question of travel documentation for those not possessing current DRC
passports.
- At pages 4 and 5 of the bundle is to be found a
letter dated 23 January 2002 from UNHCR to Mr Baster of Bail for Immigration
Detainees. This letter is in reply to an enquiry made by Mr Baster regarding
one of his bail clients. The letter states that the information available to
the UNHCR in 2002 "was that DRC nationals returning to Kinshasa by air,
including unsuccessful asylum seekers, were liable upon arrival to be
interrogated, and in some instances detained and abused by government agents".
This comment appears to be a reference to the passages quoted above from the
ACCORD/UNHCR Final Report.
- The letter goes on to note the peace agreement
signed in Pretoria in December 2002 and ends by expressing concern about the
attention which might be attracted if asylum seekers were "returned en
masse by chartered plane".
- The question as to the precise means whereby the
appellant might be returned to Kinshasa was not canvassed before the Tribunal.
Nevertheless, the obvious point to make about the return of a group of failed
asylum seekers, by means of a chartered plane, is that it would clearly be in
the interests of the United Kingdom government to have representatives at the
airport to monitor what is likely to be such a high-profile return and that
such monitoring would be likely to result in the DRC authorities wishing to be
seen to do what they say they do at Kinshasa airport (as to which, both the
passages at the top of page 125 of the bundle and the letter of 5 June 2003
are relevant- see paragraph 23 above and 34 below).
- The next document to be considered is the Home
Office Country Assessment on the DRC of April 2003. At para 5.41 we find the
following:
"The British Ambassador to the DRC stated in November 2002 that
he has not seen any evidence to indicate that failed asylum seekers are
persecuted on arrival in Kinshasa. He has also stated that the French,
Belgian and Dutch governments return failed Congolese asylum seekers to the
DRC without any problems. The only formal requirement needed to allow the
returns of failed asylum seekers are valid travel documents."
- As can be seen, this statement by the British
Ambassador is supported by the comments of Mr Byaruhanga of Amnesty
International (paragraph 26 above).
- We turn now to the letter of 5 June 2003 from the
UNHCR to Mr Behbahani. This is in reply to a letter of 4 June 2003 from him in
which he requested guidance on the return of failed asylum seekers under
present circumstances. Mr Behbahani also supplied the Tribunal with a copy of
his letter to the UNHCR. Because of its recent nature, the Tribunal considers
that it is necessary to set out the substance of the letter of 5 June in full:
"The humanitarian situation in the DRC continues to be of
concern to UNHCR, mainly due to human rights violations, epidemic outbreaks,
major nutritional and health problems and restrictions on humanitarian
access that are exacerbated by the ongoing hostilities. Over 2.5 million of
the estimated 50 million Congolese citizens are now displaced. Over 500,000
were displaced in 2002 alone, mainly due to intensified violence and renewed
fighting. Almost a million of them have not received any aid because of the
unstable security situation, especially in the eastern provinces of
DRC.
With regard to the treatment of persons returned to the DRC,
first hand accounts and reports from local human rights NGOs suggest that
certain individuals who are deported (regardless of whether they sought
asylum abroad), or even repatriated voluntarily, may face serious problems
following possible interrogation conducted by security services upon arrival
in Kinshasa. Should the authorities in Kinshasa discover that a deportee has
a political or a military profile, or has sought asylum abroad owing to a
political or military background, such person may be at risk of arbitrary
detention and ill treatment. There have also been reports of abuse of power
by security officers at Ndjaili International Airport (Kinshasa). It is
alleged that they intimidate deportees to extort money, and send them to
detention centres in cases where neither they nor their families can
pay.
However, the DRC authorities maintain that the deportee who
returns with a travel document "tenant lieu de passport" is required
to complete immigration formalities upon arrival in order to confirm his or
her Congolese nationality. He is not detained and is allowed to leave
immigration premises once Congolese nationality is confirmed. The problem in
the deportation procedure may occur when the deportee is not a Congolese
national and has acquired a DRC passport in a fraudulent manner. In such
cases, there have been reports of persons suspected of being nationals of
countries considered as "unfriendly" (e.g. Uganda, Rwanda) may be
arbitrarily detained and face ill treatment. Nationals of other countries
would normally be released after interrogation. It is therefore recommended
that the nationality of rejected asylum seekers be carefully ascertained
before they are processed for return to the DRC.
DRC authorities maintain that the information in the preceding
paragraph correctly reflects the procedure in place to receive deportees,
the UNHCR (UN High Commissioner for Human Rights) has nevertheless received
reports about deportees transferred to the DRC security services such as ANR
(Agents Nationale des Resignaments) and DEMIAT (Detection Militaire des
Actives en Anti Patrie) for interrogation. The Minister of Interior recently
announced that these two security services no longer officially operate at
Ndjauli International Airport. Officially, only the police and the DGM
(Direction Generale des Migrations) are currently operating at this airport.
Reports suggest, however, that the remaining security services have not in
fact ceased their operations and continue to maintain an unofficial presence
at Kinshasa airport.
The above-mentioned observations, combined with the serious
deterioration of the protection and security situation in the DRC, raises
questions as to whether unsuccessful DRC asylum seekers may be returned
without undue risk. You may be aware that as recently as March of this year,
UNHCR's view was that it was, generally speaking, possible for unsuccessful
asylum seekers to return to the DRC provided that they had been found in
fair procedures not to have international protection needs. UNHCR believe
that the validity of that view has been brought into question by the recent
events in the DRC. Therefore, we are keeping the situation under review and
are asking our headquarters to provide us with an updated position on
returns, which takes into account the most recent developments.
Please keep us informed of the outcome of this
appeal."
- The penultimate paragraph of this letter suggests
that the information contained in its preceding paragraphs is in the nature of
new material, coming to light since March 2003, and that this new material
throws into question the previous view of the UNHCR that "generally speaking,
[it is] possible for unsuccessful asylum seekers to return to the DRC".
- However, a close comparison of the letter of 5
June 2003 with the passages from the ACCORD/UNHCR Final Report quoted at
paragraphs 19 to 23 above, demonstrates that the substance of the letter of 5
June is, in fact, drawn from that Final Report which, as has been stated,
derives from a seminar held in Vienna in June 2002, although the first page of
the report notes that amendments were made in September and November of that
year.
- As far as the Tribunal can see, the passage in the
letter of 5 June relating to instances of extortion by security officers at
Kinshasa airport is something that may have been identified subsequent to the
preparation of the Final Report. There is, however, no information as to where
such reports have originated, let alone how prevalent is the practise of
extorting money. In any event, the problem of corrupt officials, who require
bribes in order to remove difficulties from the paths of members of the public
whom they encounter, is, regrettably, a common problem for the populations of
very many of the world's countries. With respect to the writer of the UNHCR
letter, it is difficult to believe that such a problem has only recently
arisen in the DRC. In any event, the question is not whether such a practice
is morally and legally opprobrious but, rather, whether its existence is such
as to result in a real risk of this appellant being subjected to persecution
or Article 3 ill treatment, if returned. There is no evidence at all to show
that the appellant, if returned to Kinshasa, would go there without any funds
of his own. Furthermore, we note from paragraph 18 of the determination that
he has family in Kinshasa, with whom he is still in contact. If the sums of
money sought to be extorted by the corrupt officials were set at levels which
returnees were unable to pay, there would be no point in the practice. In
short, if faced with the option of paying a bribe or being sent to a detention
centre, the appellant is likely to do the former.
- The next passage in the letter which appears to
have no counterpart in the Final Report is the reference to people from
"unfriendly" countries facing the possibility of arbitrary detention and ill
treatment. Given that this appellant is not from any such country but is
indisputably a citizen of the DRC, that problem does not arise.
- The next "new" piece of information is that
relating to the Minister of the Interior announcing that the security services
no longer officially operate at the airport but that reports suggest that they
maintain an unofficial presence. In fact, this passage, upon analysis, has
nothing new to say, compared with what is set out at page 125 of the bundle
(paragraph 23 above). At the time of the publication of the Final Report,
there were reports available to the UNHCR that certain persons may have been
transferred from the airport into security service detention. The Final
Report, however, indicates that such persons are likely to be those with a
political or military profile. This appellant has none.
- The final passage in the letter of 5 June is the
reference to "the serious deterioration of the protection and security
situation in the DRC". What is meant by this is unclear. It would, however,
appear to relate to the recent upsurge in the conflict in the northeast of the
DRC which, of course, is not under DRC government control.
- The Tribunal finds, accordingly, that the letter
of 5 June 2003 does not materially assist the appellant. It should also be
noted that, were it the case that the UNHCR considered that there had been a
significant deterioration in the position regarding returnees, since the end
of 2002, it would have specifically and authoritatively stated that, in its
view, no failed asylum seeker should be returned to the DRC. It has not done
so.
- The final letter, to which reference needs to be
made, is that of 15 June 2003 from Human Rights Watch to Mr Behbahani. This
refers to
"continued threats and difficulties faced by those who have, or
are presumed to have, Rwandan connections or are of Rwandan origin in
Kinshasa and other parts of the DRC."
Reference is then made to a continued threat
"for those individuals who are suspected by the Kinshasa
authorities of having close links to Rwanda."
Given the findings of the Adjudicator, to the effect that even whilst he
was married, the problems described by the appellant did not occur, and given
that he is not at present married to anyone who has Rwandan connections, Mr
Behbahani appeared to accept that this letter could be of little assistance to
the appellant.
- The Tribunal's conclusions are, accordingly, as
follows:
a) On the information available to it, as at 9 July 2003, it is not the
fact that a person returned to the DRC is, by reason only of being a failed
asylum seeker, at real risk of persecution or Article 3 ill treatment;
b) In order to run a real risk of being taken into detention, following the
screening of a returnee at Kinshasa airport, there must be something further
in the returnee's background, such as past political or military activities or
nationality of a state regarded as hostile to the DRC;
c) There is nothing in the circumstances of the appellant in this case to
suggest that he would be of any adverse interest to the DRC authorities.
- Leave to appeal in the present case was granted
against the background that "there may be contrasting Tribunal determinations"
on the question of risk on return to the DRC as a failed asylum seeker. At the
hearing, the Tribunal had before it a helpful case law bundle prepared on
behalf of the appellant, comprising the following determinations of the IAT:
Mozu [2002] UKIAT 05308
Mansende [2002] UKIAT 05052
Kabuya [2002] UKIAT 07457
B (DR Congo) [2003] UKIAT 00012.
- In Mozu the Tribunal
apparently had before it a report of a Dr Kenne. This appears to have
contained a reference to the DRC Minister of the Interior saying that
returning asylum seekers "would be arrested at the airport and imprisoned"
(determination, paragraph 9). The Tribunal in the present case has not seen
any similar report. In any event, the supposed statement of the Minister runs
directly contrary to what the government of the DRC has said to the UNHCR,
both in 2002 and (as it would appear) more recently. More importantly, if
there were any evidence to suggest that the DRC authorities were imprisoning
returnees on a wholesale basis, such information can have been expected to
have come to the attention of the UNHCR and, indeed, the United Kingdom
government. It has not.
- Overall, it would appear that the Tribunal in
Mozu did not have before it the extensive information
available to the Tribunal in the present case.
- In Mansende, the Tribunal
concluded that "There is no objective material to indicate that a person
simply returning to the DRC, who is of no interest to the authorities, is at
real risk of persecution". Whilst the Tribunal in the present case has reached
the same conclusion, this is based upon materials which were not available to
the Tribunal in Mansende.
- Kabuya was heard by the
Tribunal on 16 October 2002. In that case, the Tribunal allowed the appeal of
the claimant. In doing so, it appears to have placed emphasis upon a UNHCR
letter of 20 November 2001. This noted that agents of the security forces
frequently interrogate Congolese returning to Kinshasa from abroad,
particularly those who are known to have sought asylum. It further states that
UNHCR is aware of instances where interrogation at the airport has been
followed by arbitrary detention and serious ill treatment by DRC security
agencies.
- The Final Report of ACCORD/UNHCR had not been
published at the time of the Tribunal hearing in Kabuya.
Furthermore, as is apparent from paragraph 5 of the determination, the
appellant in that case clearly did have a political profile in DRC.
Accordingly, he had a background which could well be revealed during any
questioning he would have received at Kinshasa airport, with the result that
he would be identified as of adverse interest to the authorities, who would be
likely to place him in detention, with all that that entails.
Kabuya, accordingly, cannot in the view of the Tribunal
be read as authority for the proposition that a returning failed asylum seeker
is at risk, purely as a result of being such.
- Likewise, the appellant in B
(DRCongo) had, whilst in the United Kingdom, produced an article
which had apparently been published in Kinshasa, which appears to have been
critical of the DRC government, and he had also been active in "dissident
politics of the DRC" whilst in the United Kingdom (determination, paragraph
3). Again, any questioning of Mr B at Kinshasa could well reveal this
background, with the result that he would be placed in detention.
- Upon proper analysis, it would, accordingly,
appear to the Tribunal that the cases to which we have referred are, with the
exception of Mozu, not authorities for the proposition
that a person being returned to the DRC faces a real risk of persecution
solely by reason of being a failed asylum seeker. As we have said, the
Tribunal in Mozu involved had before it a report of what
transpires to have been doubtful validity. Be that as it may, this Tribunal's
conclusions are as set out in paragraph 43 above.
- One final matter deserves mention. At the
conclusion of his submissions, Mr Behbahani requested that, in the event of
the Tribunal dismissing his client's appeal, something should be included in
the determination, to the effect that risk on return could arise if, contrary
to what was currently anticipated, the travel documentation negotiated between
the United Kingdom government and the DRC Embassy were to reveal that the
holder of the documentation had been in the United Kingdom as an asylum
seeker.
- As will be apparent from this determination, the
UNHCR do not appear to place significance on the question of whether the
authorities at Kinshasa airport discover that a returnee is a failed asylum
seeker. The point is, rather, whether the authorities regard the person
concerned as having an anti-government past (whether in the DRC or abroad). As
is apparent from page 127 of the bundle (paragraph 27 above), what concerns
the UNHCR is where a returning government informs the DRC government about the
details of the asylum claim, for example, that the claimant said "he was
imprisoned and beaten" which "could cause serious problems for the
individual". Clearly, if the United Kingdom government were to divulge to the
DRC Embassy any salient details about the nature of the asylum claim, that
could in itself lead to "serious trouble for a person who may not have
problems otherwise" (page 127).
- The Tribunal sees no reason why it should not
accept the information given (on instruction) by Ms Hanrahan in the present
case. However, if, once the agreement with the DRC Embassy is in place, it
transpires that the DRC authorities will in fact be made aware of the details
of the appellant's asylum claim, it would be open to the appellant to take
legal steps to prevent his removal, were it the case that, in the
circumstances then prevailing, he would be likely to be at real risk as a
result of that disclosure.
- This appeal is accordingly dismissed.
P R Lane
Vice President
